fore a justice of the peace, who shall examine the witnesses, &c. Id. s. 9. If when before the justice the prisoner shall refuse to tell his name and place of abode, he shall be delivered over to a constable, and by him be taken to the common gaol or house of correction, there to remain for not more than one calendar month, or until he make known his name and place of abode to the said justice. Id. s. 10.

Prosecutions under this Act, must be commenced within three calendar months after the commission of the offence. Id. s. 11, But in another section, it is provided, that in all cases where no other mode of proceeding is specially provided, or in any case where the party shall not be conveyed before a justice by the authority of this Act, it shall be lawful for any one justice, upon information or complaint made by any person of an offence against this Act," within fourteen days next after the commission of any such offence," to summon the party before him or some other justice; and upon his appearance or default, to examine into the matter, &c. Id. s. 13. Which summons or a copy may be served personally, or left for the party at his usual or last known place of abode. Id. s. 15.

The evidence of the party complaining shall be received in proof of the offence; Id. s. 11, 18; so, the evidence of any overseer or inhabitant of the parish, though the penalty go to the poor of that parish. Id. s. 11.

The conviction shall be in the following form, or to the effect thereof, or as near thereto as the case shall require. Id. s. 14.

County (or as the case may be) of Lord —, at

in the

Be it remembered that on the day of in the year of our county [or as the case may be] of A. B. is convicted before me, J. P. one of Her Majesty's justices of the peace for the said county [or as the case may be], for that he the said A. B. on the day of in the year

in the said

for

at did [here specify the offence, and on a second conviction state the first ]; and I the said J. P. do adjudge the said A. B. for his said offence, to forfeit and pay the sum of [here state the penalty actually imposed, or the penalty and also the amount of the injury done, or as the case may be], and also to pay the sum of costs, and in default of immediate payment of the said sums, to be imprisoned in the [or in case of a second or subsequent conviction, to be there kept to hard labour] for the space of unless the said sums shall be sooner paid; and I direct that the said sum of [the penalty] shall be paid as follows: that is to say, one moiety thereof, to the overseers of the poor of the said parish of to be by them applied according to the directions of the statute in that case made and provided, and the other moiety thereof to C. D of [the prosecutor, or as the case may be]; and that the said sum of sum for the amount of injury done, if any sum is awarded,]

[the

shall be paid to E. F. [or the said C. D. as the case may be]; and I order that the said sum of - for costs, shall be paid to the said C. D. Given under my hand and seal the day and year first above mentioned.

Recovery and distribution of penalties.] Where the penalty or sum awarded for damage shall not be paid, either immediately or within the time appointed by the justice, the justice may commit the offender to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for not more than fourteen days if the sum and costs do not exceed £5, or for not more than two calendar months where the sum and costs exceed that; the commitment to determine on payment of such sum and costs. Id. s. 12.

One moiety of the penalty is to go to the overseer of the poor of the parish where the offence was committed, to be applied in aid of the parish rates; the other moiety and costs to the informer or prosecutor, or to such person as the justice shall deem fit: And any sum awarded for damage, to be paid to the party injured. Id. s. 17.

Appeal.] Parties aggrieved may appeal to the next sessions, giving to the justice fourteen days' notice of appeal, with the cause and matter thereof. Id. s. 20.

CERTIORARI.

In what cases, generally.] The writ of certiorari is a writ issuing from the crown side of the court of Queen's Bench, directed to the justices at sessions, or to justices out of sessions, or the judges of inferior courts, requiring them to certify to that court some indictment, conviction, order of sessions, order of justices, or other matter of a judicial nature, depending before them, in order that the same may be disposed of there in such manner as to the court shall seem fit. By means of this writ, the court of Queen's Bench exercises its superintending jurisdiction over those inferior tribunals, and quashes or confirms their acts, or assumes to itself the cognizance of matters which, from circumstances, can be proceeded upon with more certainty of justice to the parties before that court, than before the inferior tribunal. And this jurisdiction is so inherent in the court of Queen's Bench, that nothing can deprive it of the right to issue this writ, or parties of their right to apply for it, but the express words of an act of parliament, forbidding them to do so. R. v. Abbott, 2 Doug. 553. n. 113. On the other hand, where the certiorari is expressly taken away by statute, the court of Queen's Bench will not interfere by mandamus,

R. v. JJ. of Yorkshire, 1 Ad. & E. 563, or in any other manner, directly or indirectly, to enable a defendant to remove the proceedings before them, R. v. Young, 2 T. R. 472. R. v. Casson, 3 D. & R. 136, whether there be any other mode of appeal provided by the statute or not, R. v. JJ. of St. Albans, 3 B. & C. 698, unless perhaps in cases where it appears clearly that the justices have proceeded in a matter, over which they had no jurisdiction whatever. R. v. JJ. of Somersetshire, 5 B. & C. 816. R. v. JJ. of W. R. Yorkshire, 5 T. R. 629. Even where, upon an appeal against a conviction, the justices confirmed the conviction, subject to a case for the opinion of the court of King's Bench, the court held that no certiorari could issue, as by a clause in the act, on which the conviction was framed, it was provided that no "rate, proceeding, conviction, matter or thing" should be removed by certiorari or any other process whatsoever into His Majesty's courts of record at Westminster. R. v. JJ. of Middlesex, 8 D. & R. 117.

But the crown is not bound by these clauses taking away the certiorari, unless the act shew, either expressly or by necessary implication, that the legislature so intended it. R. v. Davies, 5 T. R. 626. R. v. Bodenham, Cowp. 78. R. v. Cumberland, 6 T. R. 194, 3 B. & P. 154.

To remove indictments.] A certiorari lies to remove an indictment from sessions, and all other inferior criminal jurisdictions, before verdict, if the party applying to remove it, satisfy the court or a judge, by affidavit, of the necessity for the removal, either by reason of difficult points of law being likely to arise, or that a fair and impartial trial cannot be had in the court below, or the like. And this affidavit must be made, not only where the defendant makes the application, R. v. Eaton, 5 T. R. 89; per Buller, J. R. v. Lewis, 3 Burr. 2458, per Ld. Mansfield, C. J., but also where it is made by the prosecutor. 5 & 6 W. 4, c. 23. After verdict, however, the court will not grant the writ; R. v. Jackson, 6 T. R. 145. R. v. Oxfordshire, 13 East, 411; nor after the defendant has pleaded guilty or otherwise confessed the charge; R. v. Gwynne, 2 Burr. 749; and after judgment, an indictment can be removed only by writ of error. R. v. Seton, 7 T. R. 373. R. v. Pennegoes & Mackynlleth, 1 B. & C. 142.

To remove convictions.] Summary convictions by magistrates may be removed by certiorari into the court of Queen's Bench, for the purpose of moving that court to quash them, for errors appearing upon the face of them. See R. v. Liston, 5 T. R. 338. In this respect the certiorari is in the nature of a writ of error, except that a special application must be made to the court or a judge for it; and they will not grant the writ, until they are first satisfied that the alleged defect appears upon the face of the conviction, even in cases where there is no appeal,

and no other mode of having the decision of the magistrate reviewed except by certiorari. R. v. JJ. of Cashiobury, 3 D. & R. 35. Where an application was made for a certiorari to remove a conviction, which upon the face of it appeared to be for a common assault, but it was alleged to be, in fact, for an assault to commit a felony, which by 9 G. 4, c. 31, s. 29, (see ante, p. 123) was not an offence within the jurisdiction of the justices: the court refused the writ; and Ld. Tenterden, C. J. said, that "the conviction here shews a jurisdiction upon the face of it, and I should feel great difficulty, in any such case, in granting the writ;" but the circumstances mentioned in the depositions before the convicting magistrates, even if believed by them, did not prove clearly an intention to commit a felony; and as the statute made the magistrates the judges whether such an attempt was proved or not, and they had negatived it by their conviction, the court, even taking these circumstances into consideration, thought they would not be warranted in granting the defendant the rule for the certiorari. Anon, 1 B. & Ad. 382.

But even in cases where the court may grant the writ, the party is not intitled to it ex debito justitiæ, but the court may grant it or not in their discretion; and in the exercise of that discretion, the court will always grant the writ, if there be a probable ground that injustice has been done below, in order that the conviction being removed the court may have an opportunity of reviewing it; but they will not do so, for the purpose of enabling the parties to litigate any probable cause, particularly if they be satisfied that upon the whole the magistrates have come to the right conclusion. R. v. Bass, 5 T. R. 251. Nor will the court grant a certiorari to remove a conviction, pending an appeal against it; and therefore where a defendant, who was committed by a justice until the sessions as a vagrant, appealed; and pending that appeal, he obtained a certiorari to remove the proceedings which were had before the justice, in order to have them quashed: the court, upon application and an affidavit of the facts, quashed the certiorari, saying that it ought not to have issued pending the appeal. R. v. Sparrow & Urquhart, 2 T. R. 196. n. After the appeal has been determined, however, if the conviction be confirmed, it may still be removed by certiorari, for the purpose of having it quashed, for a defect appearing upon the face of it; R. v. Jukes, 8 T. R. 625; but if the sessions have quashed it, as in that case it will not appear on the face of the order of sessions but that the sessions have quashed the conviction upon the merits, the prosecutor has no remedy, unless the sessions have merely quashed it subject to a case for the opinion of the court. If indeed a case be granted, then, if the certiorari be not taken away, the order of sessions and case may be removed by that writ, and the opinion of the court taken upon them; and if the court quash the order of sessions, it will have the effect of

setting up the conviction, which then may be enforced. See R. v. Allen, 15 East, 333. Where the conviction has been removed by certiorari, and confirmed by the Queen's Bench, that court will then upon application send the conviction back to the justices by procedendo, in order that they may enforce it by warrant of distress or otherwise. R. v. Neville, 2 B. & Ad. 299.

Orders of justices or of sessions.] All orders of justices, at or out of sessions, may be brought before the court of Queen's Bench by certiorari, and there quashed, if they appear to be bad upon the face of them. The reader will find a variety of these cases, among the cases as to the relief of children by parents, and as to orders of removal, in the third volume of this work treating of the poor laws. See also R. v. Stanley, Cald. 172. If the justices appear to have jurisdiction, the court will only look to the order itself; and if that be good upon the face of it, they will not enter into an examination of the facts or reasons upon which the order is founded, R. v. St. James, Westminster, 2 B. & Ad. 241, unless in the case of an order of sessions made subject to a special case. And therefore where, upon the hearing of an appeal, the court being equally divided, they adjourned the appeal to the next sessions; but the appellants in the mean time moved for a certiorari to remove the order of adjournment and the order of removal, on the ground that one of the magistrates, who voted for the respondents, was a rated inhabitant of the respondent parish, and that the sessions therefore, instead of adjourning the appeal, should have quashed the order of removal: the court held, that as there was nothing on the face of the order of adjournment to impeach it, they had no jurisdiction as a court of error to review it; and they accordingly refused the writ. R. v. JJ. of Monmouthshire, 8 B. & C. 137. Where also it appears clearly to the court that substantial justice had been done by the order, the court will seldom grant a certiorari to remove it, to let in a mere formal objection to it, having no reference to the merits of the case. R. v. JJ. of Denbighshire, 1 B. & Ad. 616. And where a party complaining of an order, is in custody under it, his proper remedy is by habeas corpus, and not certiorari; for upon the former writ, not only will the validity of the writ be determined, but the party will also be discharged out of custody if the order be bad. Per Ld. Kenyon, C. J., in R. v. Bowen, 5 T. R. 153, 158. It may be necessary to mention, that where an order of sessions is made, subject to a case, the certiorari (if not taken away by statute) is granted as a matter of course, where it is applied for in proper time, &c.

If the sessions upon appeal quash or confirm an order of justices, and both orders are brought before the court of Queen's Bench by certiorari: then, if the order of justices be bad upon the face of it, and the order of sessions confirm it, the court will quash both orders; if the order of sessions quash it,